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Analysis: A “moratorium” on lethal injection?

UPDATE 4:45 P.M.  Once again, the Supreme Court on Wednesday blocked a scheduled execution in a case involving a challenge to the constitutionality of the lethal injection method. The order came in the Virginia case of Christopher Scott Emmett (application 07A304); the case is discussed below.  The Court’s order, with no indication of dissent, can be found here.  Emmett was scheduled to be executed at 9 p.m. Wednesday; the stay will continue pending the outcome of his appeal to the Fourth Circuit Court (Circuit docket 07-18), or further order by the Justices.  Chief Justice John G. Roberts, Jr., referred the stay application to the full Court for action; he is the Circuit Justice for the Fourth Circuit.

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The Supreme Court has not issued anything like a nationwide moratorium on the lethal injection method of capital punishment — and it is not likely to do so. But an increasing number of lower court judges appear to be reading the Court’s planned review of the constitutionality of the most widely-used drug protocol for use in death chambers to be a strong call for caution in going forward with executions.

The Court on Sept. 25 agreed to rule on the case of Baze v. Rees (07-5439), raising the question of whether it violates the Eighth Amendment ban on “cruel and unusual punishment” to use the common three-drug formulation to carry out the death penalty, because the protocol is claimed to result in real pain and suffering before the execution is completed. The Court has not been asked to delay all lethal injections until it rules on the Baze case, and it is not clear that anyone would have the authority to ask the Justices for that kind of order, or that the Court would have the power to impose such a moratorium while the Baze case is pending. (It could do so, under its supervisory authority, over federal courts, but most death penalty cases arise in state courts.)

But it is now evident, from documents filed in various death penalty cases since Sept. 25, and from the content of the Supreme Court’s own order in an Arkansas case on Tuesday, that the effect of the grant of review in Baze is being debated actively in each case where an execution is imminent in a state using the specific three-drug protocol.

Before this evening, the Court may act on another case in which a death row inmate is seeking to delay execution by lethal injection, and the primary issue in that case is the effect, if any, of the Baze grant on such stay requests. This new case involves Virginia inmate Christopher Scott Emmett, facing execution for the 2001 slaying of a co-worker in Danville, Va., for refusing to lend Emmett money to buy illegal drugs. Emmett’s lawyers filed a stay request with Chief Justice John G. Roberts, Jr., on Monday; Emmett is scheduled to be executed at 9 p.m. tonight.

In the Fourth Circuit Court, Emmett’s lawyers had sought a stay pending a final ruling by the Supreme Court in the Baze case. While the majority of the panel denied the stay, apparently refusing to treat the Baze grant as controlling, Circuit Judge Roger L. Gregory “voted to grant appellant a stay of execution until the Supreme Court decides Baze v. Rees,” according to the order.

That issue, too, was debated in the Eighth Circuit Court before it issued a stay last Thursday to delay the execution of Jack Harold Jones, Jr., sentenced to die for the brutal slaying and rape of a woman office worker in Bald Knob., Ark., in 1995. The Circuit Court made no comment as it granted the stay, but one judge on the panel, Circuit Judge Raymond W. Gruender, dissented. He wrote: “No precedent requires courts to stay all executions involving the same or similar issues to cases currently pending before the Supreme Court….The Supreme Court has not issued a nationwide stay of lethal injection executions until it hands down a decision in Baze.”

This was a key issue before the Supreme Court when the state of Arkansas asked the Justices to lift the Circuit Court’s stay. The Court refused to do so on Tuesday, in an order that can be found here.

Justice Antonin Scalia dissenting, wrote: “I vote to grant the State’s application to vacate the stay because in my view the decision of the Eighth Circuit was based on the mistaken premise that our grant of certiorari in Baze v. Rees.., calls for the stay of every execution in which an individual raises an Eighth Amendment challenge to the lethal injection protocol.” Jones’ challenge should be denied, Scalia went on, because he waited nine years to raise it.

That is the first time any Justice has publicly discussed the dispute over the meaning of the grant in Baze. The fact that none of his colleagues joined his dissent, however, does not necessarily mean that all eight other Justices are reading the grant as an informal moratorium.

(ADDENDUM: The issue of Baze‘s effect on executions was raised as an issue when the Nevada Supreme Court this week considered a request to stay the execution of William Castillo (docket 50354 in the state’s highest court). The petition, in fact, had sought a stay of all executions in the state until the Supreme Court decided Baze.  The Supreme Court did not mention that in its stay ruling on Monday, confining its stay to the Castillo case. Then, on Tuesday, the state court refused to allow an anti-death penalty group to join in the case on behalf of another death row inmate, Pedro Rodriguez, in order to seek postponement of all Nevada executions, and the denial order said it would not be helpful to have a group pursuing that objective while the court was resolving the Castillo case.

(In Georgia, the state Supreme Court on Tuesday refused to delay the scheduled execution on Friday of Jack Edward Alderman, sentenced to die for murdering his wife in 1974.  The case involves a death row inmate who has no pendiing challenge to his conviction or sentence, but is seeking to block his execution by lethal injection. In its order, the court commented: “The Supreme Court of the United States has not yet indicated that, in cases in this posture, all executions by lethal injection should be stayed.” If the Court does so act, it added, it would comply and “will closely follow every directive from that Court.”)